Paid Sick Leave Quarterly: 2Q 2019

The vast and complex patchwork of PSL laws expanded in the second quarter of 2019. The most notable development was the addition of two laws with PSL architecture but allowing paid leave to be used for any reason, not merely for sick leave.

Paid Sick Leave Bills Introduced During Q2

None, though some introduced previously remain pending.

Paid Sick Leave Preemption Developments

Alabama: The Eleventh Circuit Court of Appeals has decided to hear the challenge to Alabama’s minimum wage and employment benefits preemption law en banc, meaning that all of the Court’s judges will hear the case. The Court held oral argument on June 25, 2019. The Alabama Uniform Minimum Wage and Right-to-Work Act bars municipalities from requiring employers to provide employees wages or “employment benefits,” including leave, unless required by federal or state law. The plaintiffs brought various race-based challenges to the Act, all of which were rejected by a federal district court last year. Last July, a three-judge panel of the Eleventh Circuit affirmed the dismissal of all claims except the “equal protection” constitutional claim. Marnika Lewis v. State of Alabama et al. (11th Cir) (Case No.17-11009)(11th Cir. July 25, 2018).

Paid Sick Leave Litigation

Challenges to state PSL laws

Massachusetts and Washington: The Massachusetts Earned Sick Time Law (MESTL) and Washington State Paid Sick Leave Act (WPSL) as applied to flight crew are unconstitutional and preempted by the federal Airline Deregulation Act (ADA), according to complaints filed by the Air Transport Association of America, an association of airline carriers. The plaintiff claims these state laws violate the dormant Commerce Clause–the implicit restriction on a state or local government’s ability to unreasonably burden interstate commerce–and the Fourteenth Amendment of the Constitution. The plaintiff also alleges that the ADA preempts the state PSL laws with regard to both flight crew and ground crew because they relate to a “price, route or service of an air carrier.” In the Massachusetts case, the plaintiff filed a motion for summary judgment on November 30, 2018, which remains pending. Air Transport Association of America, d/b/a Airlines For America v. Maura Healey in her capacity as Attorney General of the Commonwealth of Massachusetts (D.MA)(complaint filed 04/04/18); Air Transport Association of America, d/b/a Airlines For America v. The Washington Dep’t of Labor and Industries et al (W.D. WA)(complaint filed 02/06/18). A handful of airlines have raised similar challenges to the NYC PSL law as well.

Michigan: The Michigan Supreme Court will wade into the clash involving the constitutionality of the state’s Paid Medical Leave Act, at least to decide whether to consider the substance of that clash. In response to requests by both legislative chambers for an advisory opinion on the legality of the recently enacted state PSL law, the court scheduled a hearing on July 17, 2019. The first of three questions listed in the Court’s Order is whether it should exercise its discretion and issue the requested advisory opinion.

Challenges to local PSL laws

Pittsburgh, PA: The Supreme Court of Pennsylvania will decide whether Pittsburgh had authority to enact the Sick Days Act which it adopted three years ago. Last year, an appellate court affirmed a lower court decision that the City did not have the authority to enact it and invalidated the law. Oral argument in the Supreme Court occurred on October 23, 2018. Pennsylvania Restaurant and Lodging Ass’n v. City of Pittsburgh and Service Employees Int’l Union, Local 32 BJ. (Pa. Supreme Court, 57 WAP 2017).

Austin, TX: The Austin Earned Sick Time Ordinance is unconstitutional because it is preempted by the Texas Minimum Wage Act (TMWA), the Texas Court of Appeals, Third District, ruled in November. The City of Austin has asked the Texas Supreme Court to hear an appeal of that decision. The Austin PSL ordinance was to be effective on October 1, 2018 but its implementation has been enjoined pending the outcome of the litigation. Texas Ass’n of Business et al v City of Austin, Texas et al (TX Ct of Appeals, Third District, Case. No. 03-18-00445-CV, November 16, 2018).

Other Paid Sick Leave Developments To Watch

Bernalillo County, NM: The Board of Commissioners tabled a proposed PSL ordinance to consider transforming it to an “any reason” ordinance by deleting the limits on the use of accrued time.

Minneapolis: As a result of a recent court of appeals decision, beginning July 3, 2019, Minneapolis began enforcing its Sick and Safe Time Ordinance against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city.